Bernhard v. Rice — 68 N.Y. Sup. Ct. 184

Majority

p. 184

CHARLES BERNHARD and JAMES F. CASEY, Appellants, v. RALSA C. RICE, Respondent.

Headnote

Costs — motion to set aside a summons for want of jurisdiction — costs of a motion only, not of the action, allowable.

Where a defendant appears in an action solely to move that a summons served upon him he set aside for want of jurisdiction, and this motion is granted, he is not entitled to the costs of the action, but only to the costs of such motion.

Appeal by the plaintiffs, Charles Bernhard and James E. Casey, from that part of an order, entered in the office of the clerk of Monroe county on the 20th day of January, .1891, which allowed the defendant costs of the above-entitled action.

J. A. Bernha/rd, for the appellants.

M. A. Oeron, for the respondent.

That portion of the order appealed from was clearly unauthorized. The summons was set aside for want of jurisdiction, it being made clearly to appear that the defendant.'who was a resident of Ohio, had come within this State solely for the purpose of attending as a witness upon the trial of an action in the Supreme Court, and was so attending at the time the service in question was made upon him He made no appearance in the action except for the purpose of the motion to set aside the summons, and in the notice of such motion he asked only for the costs of the motion.

Of course, no costs of the action accrued to the defendant.

p. 185

Indeed, upon the very theory of his motion, he was never defendant in the action; no action herein was ever commenced against him; the court never acquired jurisdiction, of him for the purposes of the action. Iiis appearance was for the purpose of the motion only, and it is only costs of the motion which could properly be awarded against the plaintiff. (Ex parte Benson, 6 Cow., 592 ; People ex rel. Mallard v. The Judges of Madison Co., 7 id., 423.)

The portion of the order appealed from should be reversed, with fen dollars costs and, disbursements of this appeal.

Macomber and Lewis, JJ., concurred.

The portion of the order appealed from reversed, with ten dollars costs and disbursements.